Date: 5 August 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member McDonnell
Human Rights Act 2019 (Qld) Sections: ss 13, 26(2), 31, 34, 58
Rights Considered: Right to protection of families and children: right to protection without discrimination; Right to a fair hearing; Right not to be tried or punished more than once
Other Legislation: Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19, 20, 24, 66; Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 221, 226, 353, 354, 360
Keywords: Children and Families; Public Law Considerations; Non-retrospectivity

This case concerned a self-represented applicant seeking review of the respondent’s decision to issue her with a negative blue card notice. The Tribunal considered several human rights, including the right to protection of families and children (section 26), the right to a fair hearing (section 31), and the right not to be tried or punished more than once (section 34).

This case concerned a self-represented applicant, TRE, who applied for a blue card notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld). Due to her criminal history, the respondent proposed to issue a negative blue card notice and invited TRE to ‘make submissions about whether or not there was an exceptional case’: at [1]-[2]. TRE was issued a negative notice in August 2019 and sought review of the decision, arguing it was not an ‘exceptional case’ within the meaning of section 221(1) of the Working with Children (Risk Management and Screening) Act 2000 (Qld): at [4]. The Tribunal noted that a positive notice must be issued unless the Tribunal is satisfied that ‘it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued’ to TRE: at [10].

In making this decision, the Tribunal noted that it was required to ‘stand in the shoes of the decision maker’ and undertake the review ‘under the principle that the welfare and the best interests of the child are paramount’: at [7]. With regards to the Human Rights Act 2019 (Qld), specifically, the Tribunal noted that it was ‘acting in an administrative capacity’ and, therefore, was a ‘public entity’ that had to ‘interpret statutory provisions in a way that is compatible with human rights’ and ‘conduct itself in accordance’ with section 58: at [68].

There was no substantive engagement with the Human Rights Act 2019 (Qld), however, the Tribunal noted that it considered TRE’s right to a fair hearing and her right not to be tried or punished more than once. In addition, the right of every child ‘to protection that is needed by the child, and is in the child’s best interests, because of being a child’ pursuant to section 26(2) of the Human Rights Act 2019 (Qld) was also noted. The Tribunal was ‘satisfied’ that its decision was ‘compatible with human rights’ and, if there were any limitations on the relevant human rights, those limitations were reasonable and justifiable in accordance with section 13: at [73].

The Tribunal further noted that as the hearing was held in private, it acted in compatibility with section 31 of the Human Rights Act 2019 (Qld): at [72].

Ultimately, the Tribunal held that TRE’s case ‘is not an exceptional case in which it would not be in the best interests of children for a positive notice to be issued’: at [75].

Visit the judgement: TRE v Director-General, Department of Justice and Attorney-General [2020] QCAT 306 (PDF, 363 KB)